In my first blog in this series, I spoke about what a Medicaid applicant and his or her loved ones will need to do in order to ensure that their attorney has everything necessary in order to make a successful application for Community  Medicaid (i.e. home care).

Today, I will discuss what you should expect an attorney to do, after he or she is retained, to guide the Medicaid applicant and his or her loved ones through the Medicaid application process.

When he or she is engaged to complete an application for Community Medicaid, you can expect an experienced elder law attorney to do all of the following:

  1. Advise on how the Medicaid applicant can become eligible for community Medicaid. This will most commonly involve education on the transfers of assets, and in many cases, the concept of joining a pooled income trust.  A qualified attorney should be able to:
    1. prepare documents to permit smooth and secure transfers of assets (such as a Durable Power of Attorney and/or an irrevocable Medicaid Asset Protection Trust);
    2. advise on asset transfers and ways to protect transferred assets; and
    3. advise on why joining a pooled income trust may be necessary and assisting with the forms required for the Medicaid applicant to join such a trust.

 

  1. Complete the New York Community Medicaid application forms and submit them to the appropriate agency for review and processing.

 

  1. Audit all the materials submitted to make sure the applicant has everything necessary for the application to be deemed complete. This would include:
    1. auditing all of the financial accounts of the Medicaid applicant and the applicant’s spouse;
    2. identifying any and all transactions likely to be examined and making sure all are explained and accounted for, or advising the client of the impact on the application of being unable to provide adequate documentation concerning such transactions; and
    3. advising the client of any additional information or documentation that Medicaid is likely to request and explain how it will be used and the proper steps to take in requesting documentation.

 

  1. Advise on how to obtain documents the Medicaid applicant and/or their loved ones are having trouble accessing that are needed for the application.

In compiling an application for Community Medicaid, there are a couple of other things an attorney can do, but which the Medicaid applicant and/or his or her loved ones should do in order to avoid incurring large legal fees. These include:

  1. obtaining financial statements for the Medicaid applicant and the applicant’s spouse provided the client gives the attorney written authorization; and
  2. obtaining change of beneficiary forms for the client which the client then needs to complete.

If you or a loved one is interested in protecting assets and accessing Medicaid to pay for care that allows you to remain in your home, our experienced elder law attorneys can help.

As the population ages and people are living longer than ever before, an increasing number of people find they need help at home.   Because the cost of paying for home care privately can be impossibly burdensome, many families choose instead to apply for Community  Medicaid (i.e. home care) to cover the cost.

In order to apply for Community Medicaid, the applicant must first become financially eligible.  An experienced elder law attorney can guide a prospective applicant and his or her loved ones through the process of becoming eligible and submitting the Medicaid application.

However, although having an attorney will be helpful in the process, there are still a number of things that the Medicaid applicant or his or her loved ones will need to do.

In this two-part blog, we will first discuss what the Medicaid applicant and his or her loved ones will need to do.  Part 2 will discuss what an attorney can take off your plate!

The Medicaid applicant, or his or her loved ones, should expect to do the following when preparing for and submitting an application for Community Medicaid:

  1. Requesting financial statements and other financial documentation. Requesting financial statements and following up until those statements are received (which may involve contact with banks, brokerages, life insurance companies, etc.) and providing them to the attorney.
  2. Gathering important identity documents. Going through the applicant and their spouse’s things to find crucial identity documents, including birth certificates, marriage certificates, military discharge papers, etc. and providing them to the attorney.
  3. Requesting and obtaining identity documents that cannot be located. Requesting documents from various government agencies and following up until those documents are received, which may involve, calling, emailing, or visiting the issuing agency and providing them to the attorney.
  4. Arranging for neighbors or friends to sign simple forms. Speaking to neighbors and friends of loved ones to arrange for necessary residency forms to be filled out, wherein someone will state how long they knew the Medicaid applicant to be living at a certain address for at least X amount of time, and providing them to the attorney.
  5. Arranging for the applicant’s doctor to fill out medical forms. Contacting the Medicaid applicant’s doctor(s) and arranging for them to fill out forms attesting to the need for home care and providing them to the attorney.
  6. Moving assets out of the Medicaid applicant’s name. Speaking with various financial institutions and taking all actions necessary to transfer assets out of the Medicaid applicant’s name so that they are under the Medicaid resource allowance and providing documentation of such transfers to the attorney.

Notice a common theme?  The real responsibility of the Medicaid applicant and/or his or her loved ones will be to provide documentation to the attorney.   With adequate, appropriate documentation, the attorney can ensure that any issues with eligibility or the Medicaid application ultimately being successful are timely addressed, alleviating stress from the applicant and his or her family.  Without adequate documentation from the Medicaid applicant or his or her loved ones, it will be very difficult, if not impossible, for the attorney to get the Medicaid applicant eligible for Community Medicaid and the application approved.

Generally, a durable power of attorney and a health care proxy or HIPAA Authorization will be indispensable in allowing the applicant’s loved ones to access all of the necessary documentation.  If the Medicaid applicant does not have these important documents in place, the counsel of an experienced elder law attorney should be sought immediately.

Stay tuned for Applying for Community Medicaid – Part 2: What Your Attorney Can Do.

Many of our clients are legitimately concerned about what will happen to their homes and their assets if they need to go into a nursing home. They have heard of the five-year lookback related to Medicaid. Often, they show up at our office believing they will be advised to transfer their homes and/or their assets to their children in order to prevent the government from seizing them or forcing them to pay for their own care. However, transferring a home or other assets to your children is often not a good idea; it’s usually a much better plan to transfer your home (and sometimes some of your assets) into a Medicaid Asset Protection Trust.

What most people don’t realize is that the five-year lookback is not the only consideration in making outright transfers of assets to children.

First, when you transfer money to a child, that money is no longer yours, and it is unprotected. We hear it all the time. The client trusts their children and knows they will make sure it’s there for them if they need it. That’s all well and good, but what if something happens to that child? What if that child, heaven forbid:

  1. … gets sick?
  2. … gets sued?
  3. … gets divorced?
  4. … dies?

In each of those situations, that money that the client‘s child was holding for them is now at risk. If the child becomes ill and needs to apply for Medicaid, those assets are legally hers and are now at risk of loss. If the child dies, those assets may be subject to probate and be given to your child’s beneficiaries (including his or her spouse!) who may not do the things your child would have with those assets. If the child gets divorced or sued, again, since those assets are legally your child’s, they are at risk of being completely lost and irretrievable.

In most of these situations, the client has no recourse and no way to get the money back. Despite this, if the client needs nursing home care, Medicaid will assess a penalty period based on the amount of assets transferred and will not pay for care during that time period. This leaves the client in a seriously bad situation, potentially unable to get the care they desperately need.

All of the problems just mentioned can be avoided through the use of a Medicaid Asset Protection Trust. The basic concept is that the client transfers assets to a trustee, usually one or more of their children, who holds those assets as a Trustee of the trust. Thus, the assets are not considered to be the property of the child. If the Trustee gets sick, gets sued, gets divorced, or dies, another Trustee is can take over, and the assets remain in the trust, protected from the issues of the child.

In New York, current law permits for the client setting up an irrevocable trust to retain the right to change the Trustee and the beneficiaries. Not all law firms give the client these powers, but when they do, it allows the client to maintain a much more comfortable level of control while still safeguarding them against Medicaid if they need long-term care services and depletion or seizure if anything happens to their child.
If you’re interested in protecting and safeguarding your assets no matter what happens to you or your children, consider speaking with one of our qualified elder law attorneys about an irrevocable Medicaid Asset Protection Trust today.

Many individuals who seek counsel in our office come in ready to talk about a DNR (Do Not Resuscitate). They believe it to be a document that allows them to forgo life support in the event of a catastrophic event. However, the document which lets an individual express their wishes to refuse treatment in the event certain conditions are met is a living will, not a DNR. While most individuals should have a living will if there are situations in which they would not want to be kept alive, most individuals likely should NOT have a DNR.

A DNR is a document that a patient (or their agent under a health care proxy), may choose to execute and keep on file with their doctor. It is typically intended for patients who are terminally ill, or who have serious medical conditions that compromise their quality of life. It is a document that basically exercises the patient’s right to die a natural death with no interventions, regardless of the circumstances. For example, if a patient has terminal cancer and is expected to live another 6-12 months, and then they have a heart attack, a DNR dictates that no CPR should be performed. A DNR is designed to prevent life-saving treatment from being administered.

A Living Will is a very different document. It does not signal that treatment should be withheld in every circumstance. Instead, it gives a person’s health care agent, known in New York as their health care proxy, guidance as to the person’s wishes regarding withholding or withdrawing treatment such as respirators. Nothing is automatic, and medical personnel do not get to make the decision – the health care proxy does. It is a good document for all individuals to have so that in the case of a catastrophic medical event, someone who knows their wishes can make decisions for them.

If there are situations in which you or a loved one would not want to be kept alive at all costs, you should speak to an attorney about having a living will drawn up as soon as possible. Without it, if you are unable to speak for yourself, you run the risk of having your wishes ignored. Here at Russo Law Group, we regularly prepare living wills for clients who would not want to be kept alive in certain catastrophic medical situations, and we would be happy to assist you in getting this important document in place.

When you go to the doctor, you expect to be asked invasive questions.  When you go see an estate planning attorney, however, you may not be expecting the same level of personal inquiries.  After all, an attorney is not taking care of your body, so there are certain private matters that can be kept private, right?

Not necessarily.  In order to come up with a plan that best protects you and your loved ones in the future, your estate planning attorney will need to ask you a series of questions about yourself and your life circumstances that could, at times, feel a bit invasive.  However, it’s important to remember that your attorney has your best interests at heart and cannot develop the best plan – or even a good plan – for you when he or she is missing some of the facts.  As such, when you meet with an estate planning attorney, here are some of the topics you should be prepared to discuss with them:

  1. Your relationship status.

Are you married?  Happily, or not so happily so?  Are you and your spouse on the same page when it comes to planning?  Have you ever executed a separation agreement?  Are you divorced?  Have you ever been married, divorced, or widowed?  Is this your first marriage?  Do your loved ones all know that you are married?  If you are unmarried, is there a significant other you’re sharing your life with that we may need to protect – or somehow get rid of – when you pass away?  Do you live with an unmarried partner?

  1. Your children.

Who are your children?  Do you have a good relationship with all of them?  Are they biologically related to you?  Have you legally adopted them?  Do you consider anyone your child that you don’t have a biological or legal relationship to, such as a child of your married or unmarried partner?  Were your children born during marriage or out of wedlock?  Do all of your children have the same mother/father?  Do you have biological or legal children who you do not get along with?  Do you have biological or legal children who you want to disinherit?  Why do you want to disinherit them?

  1. Your loved ones.

Do you have family members or friends, including those listed above, who you want to include in your planning?  Do any of those people have special needs?  Are any of those people known to have issues that may make them unfit to receive outright gifts from your estate or to take on legal responsibilities regarding you or your estate?  Do any of your loved ones have a criminal history, addiction issues, or a known pattern of poor financial decision-making?

  1. Your assets.

What do you own? Do you have money in the bank, life insurance, annuities, stock accounts, a home that you own, etc.?  Is there a mortgage on your home?  Do you have outstanding debt of any kind? Are there any agreements in place that restrict the transfer or titling of your assets, such as a business agreement, a separation agreement, a divorce agreement, or a reparations agreement?

  1. Your health.

Are you currently healthy?  If not, what diagnoses do you have?  What is your prognosis?  Is there treatment available for the condition or conditions you have?  How do your diagnoses affect you, physically and mentally?  Are any of your diagnoses degenerative?  Do you expect your physical or mental condition to deteriorate beyond normal changes associated with aging?  Do your loved ones know of your diagnoses, the prognosis for each, etc.?

  1. Your true wishes and feelings.

How are your relationships with your loved ones?  Is there anyone in your family you wish to disinherit or any loved one you wish to make no provisions for?  Why?   How do you want your assets to be distributed at your death?

Although some of these questions won’t be those most comfortable for you to answer, it will be important for you to answer them honestly.   Moreover, it is important for you to know that these are the types of topics estate planning attorneys are discussing with individuals and families constantly.  We are here to help, not to judge, and we have a legal responsibility to keep all the information you tell us strictly confidential.  We cannot tell your partner, your kids, your friends, or anyone else about anything you tell us unless you explicitly authorize us to.  Help us help you by giving us all the facts we need in order to create the best plan to protect you and your loved ones.


Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.

 

The Two Types of Trusts You Need That Make Your Will So Long

Recently, a client called me in a bit of a panic.  She had just received the drafts of her Will and was shocked to see that it was thirty pages long!  She didn’t understand why and told me all she wanted was a simple will.  I explained to her that although some Wills are – properly – very simple and short, most Wills should not be.

Wills that are only a few pages are either short because they are:

  1. Pour-Over Wills, so called because they pour the deceased person’s assets into a pre-existing trust, or
  2. do not contain important trust provisions designed to protect beneficiaries.

As the saying goes, “Man plans while God laughs”.  Between the time you create your Will and when you pass away, many things can and will change, not just for you but for your chosen beneficiaries. A good estate planning attorney will include provisions in your Will that provide protection for your beneficiaries should such changes occur, making it so that, hopefully, your Will does not need to be constantly updated.  The two most important provisions that allow for your Will to adapt to changing circumstances without being altered are trust provisions called Minors’ Trust provisions and Supplemental Needs Trust provisions.

Minors’ Trusts provisions allow the share of your estate that would otherwise go outright to a beneficiary to instead be held in trust for him or her until they reach a certain age.  This is especially important for any beneficiary under the age of 18 years old, but it can be equally as important for those beneficiaries who are over the age of 18 but still lack the life experience to manage a significant amount of money.  Minors’ Trust provisions are customizable to the extent that you can choose the age or ages at which a beneficiary should get all or a portion of their share of your estate outright.

Although you may choose to leave your estate completely to people over the age at which you would want those people to be able to get their share of your estate outright, your Will should list contingent beneficiaries.  Contingent beneficiaries only get a share of your estate if a primary beneficiary predeceases you, and so they may be very young or not even in existence yet when your Will is created.  It is common for parents to leave everything to their children, per stirpes, which means that if your child predeceases you and has their own child(ren) (your grandchildren), those children may be minors.  In this situation, having Minors’ Trust provisions in place becomes essential to protect minors from others and even sometimes from themselves.

Supplemental Needs Trust provisions protect any of your beneficiaries, primary or contingent, who have special needs at the time of your death or are entitled to important government benefits such as Medicaid.  You may be aware of certain family members who are special needs now and rely on government programs that are specially designed to meet their needs, who you have already made arrangements for in your Will.

But what if you have other beneficiaries who are not special needs when your Will is created, but who end up being special needs by the time you pass away?  In order to make sure they don’t lose vital government benefits they may come to rely upon, Supplemental Needs Trust provisions allow their share of your estate to be held in trust for them to be used for their benefit in ways that won’t jeopardize their benefits.

Without these two important sets of trust provisions, your true intent in getting assets to your beneficiaries may be at risk. Here at Russo Law Group, our Wills  routinely contain these important provisions.  If your will is just a few pages long and not a Pour-Over Will, consider scheduling a consultation with one of our experienced Estate Planning attorneys who can make sure your beneficiaries have the protection they need.


Choosing and working with a law firm can be stressful. Often you don’t know what the process is, what it will cost, and whether the law firm will even be able to help you! To feel confident in your choice, and to know that your confidence is not misplaced, you should look for much more.
Our team of elder law attorneys, estate planning attorneys, and special needs (disability) attorneys have represented the elderly and persons with special needs/disabilities and their families since 1985. In most professional occupations there is no replacement for experience. At Russo Law Group, P.C., our caring and compassionate staff have been involved in literally thousands of cases. Our experience is your protection.
Here are just a few reasons why.